1. By the Petition dated 25 th September 2019, the Petitioners state that as the Musenke Community they have long standing occupation of land within the Magadi concession area, land they have lived on since the pre colonial era but were excluded from during the 1972 adjudication process. Although they occupy approximately 55,000 acres within the concession and live directly within the mining zone of Tata Chemicals Magadi Limited, they were omitted from the definition of “Magadi Local Community” in the 2019 Community Development Agreement. Their attempts to seek inclusion, particularly in the election of CDA Committee representatives, were ignored, and elections proceeded without their participation. The Petitioners therefore assert that they have been marginalized, denied representation, discriminated against, and deprived of access to information and participation in decisions affecting mining operations on their ancestral land.
2. They seek declarations affirming their indigenous rights over the concession area, recognition of their marginalization, and findings that their constitutional rights under Articles 27, 35 and 43 have been violated. They ask the Court to quash the 15 August 2019 elections, halt the CDA Committee from taking office without their involvement, and order fresh elections that include the Musenke Community. They also seek injunctive relief preventing further exclusion, any additional orders the Court deems fit, and costs of the Petition.
3. The 1st and 2nd Respondents oppose the Petition, which challenges the establishment of the Community Development Agreement Committee for Tata Chemicals Magadi Limited on the ground that the Petitioners, who identify themselves as the marginalised Musenke community, were excluded from representation and consequently threatened with violations of their rights to equality, access to information, public participation, property, and equitable sharing of benefits from natural resources. The Respondents explain that under section 109 of the Mining Act, 2016 and the Mining (Community Development Agreement) Regulations, 2017, the mineral-right holder is required to enter into a Community Development Agreement with the relevant community, and that the statutory framework replaced the former Liaison Committee arrangement.
4. They state that the Tata Chemicals Magadi project extends across five sub-counties—Magadi, Kajiado, Isinya, Mukaa and Changamwe—and therefore five CDACs are being established, with community projects to be funded from a minimum of 1% of gross mineral revenue. The Respondents maintain that the process was still ongoing, involving consultations and elections, with County Government nominees yet to be submitted, and no final gazettement having occurred. They acknowledge that the Ministry received a complaint concerning exclusion of the Musenke community and was in the process of convening stakeholders to address it and consequently contend that the Petition and the reliefs sought are premature and misplaced, urging that the matter be resolved through the ongoing statutory and consultative process.
5. In response to the Petition, the Ist Interested Party, Tata Chemicals Magadi Limited, asserts that it holds a valid lease for the concession area and has entered into a Community Development Agreement (CDA) with the recognized Magadi Local Community, which comprises four specific group ranches under the Community Land Act.
6. Furthermore, the company argues that it had only a peripheral role in the selection of the CDA Committee members, noting that the election process was conducted by the community itself and overseen by the Ministry of Petroleum and Mining. Consequently, the company contends that it cannot address the petitioners' grievances regarding their alleged exclusion, as those matters were determined independently by the recognized community groups.
7. The 2nd Interested Party, County Government of Kajiado supports the Petition and avers that although the Musenke Community is not registered under the Community Land Act, it qualifies as a community under the Mining Act and should have been part of the CDA process. They argue that excluding the Musenke Community and the County Government of Kajiado from the negotiations and the August 2019 elections invalidates the resulting CDA. The submissions highlight that the process failed to uphold constitutional principles of public participation and inclusiveness, calling for judicial intervention to address the exclusion of these stakeholders from decisions impacting their ancestral lands and livelihoods.
8. The 3 rd Interested Party opposes the Petition and assert that the CDA negotiation and committee election processes were transparent, public, and legally compliant, and urge that the current legal challenge is being prosecuted in bad faith, causing significant and avoidable delays in the delivery of vital development resources to the community.
9. They further contest the legitimacy of the Petitioners, who claim to represent a "Musenke community," arguing that no such distinct entity exists and that the concession area is exclusively held by the four recognized group ranches. It is argued that the Petitioners are not legitimate representatives and are attempting to obstruct communal benefits intended for all residents of the Lake Magadi resource area. Consequently, it is submitted that the ongoing litigation is prejudicial to the community’s interests and urges the court to dismiss the petition so that the CDA can finally be implemented without further delay.
10. I have taken note of the submissions filed by the parties herein.
ANALYSIS AND DETERMINATION
11. Having considered the pleadings herein, along with the submissions filed herein and the relevant law, I frame the following as the issues for determination
a. Whether the Petition is justiciable?
b. Arising from (a) above whether the Petitioner’s rights were violated as alleged?
c. Arising from (a) and (b) what are the consequential orders
12. The respondents contend that the Petition runs afoul of the doctrines of exhaustion and constitutional avoidance. It is submitted that there exist statutory mechanisms to resolve the dispute that have not been exhausted by the Petitioners and that further the respondents are vested with the statutory mandate to resolve the issue.
13. In Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), t he Court of Appeal held that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Likewise, in Geoffrey Muthinja Kabiru & 2 Others v. Samuel Munga Henry & 1756 Others (2015), The Court emphasized the importance of exhausting alternative remedies before approaching the courts, reinforcing the need for parties to utilize established mechanisms for dispute resolution.
14. The Petitioner does not deny there is a statutory process for addressing the grievance they have. The same is set out at regulation 5 of the Mining (Community Development Agreement) Regulations, Legal Notice 148 of 2017 which provides;
5. Identification of a community
15. (1)As part of the environmental social impact assessment carried out in accordance with the Environmental Management and Coordination Act, the holder shall identify one or more communities with which it proposes to enter into an Agreement.
(2)The holder shall, within thirty days of the grant of a mining licence, notify the community in writing of its intention to enter into an agreement and send a copy to the Cabinet Secretary.
(3)A community that has not been identified by the holder may give notice to the holder that it should be identified as a party to the Agreement.
(4)Where a community gives notice to a holder that it should be identified as a party to the Agreement and the holder is not in agreement, that community may submit a petition to the Cabinet Secretary.
(5)The Cabinet Secretary in consultation with the County Government and the National Environmental Management Authority shall notify the holder within ninety days from the receipt of the petition, whether the community should be identified as a party to the Agreement.
(6)A party that is aggrieved by the decision of the Cabinet Secretary may appeal to the Environment and Land Court within thirty days from the date of notification
16. There is therefore a clearly set out procedure. The Petitioners have not exhausted it, neither have they brought themselves within the exceptions to the doctrine of exhaustion as set out in Wahome v Public Health Officers & Technicians Council & another [2023] KEHC 2680 (KLR) and which include; futility, that is if pursuing the administrative remedies would be futile or inadequate; if there would be irreparable harm in the absence of immediate judicial intervention and if the case involves a pure question of law or a constitutional challenge that the administrative agency cannot resolve.
17. The last exception relates directly to the doctrine of constitutional avoidance. In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), the Supreme Court reiterated that the principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. It cited with approval the decision of the South African Constitutional Court in S v. Mhlungu, 1995 (3) SA 867 (CC) where Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows
[59]I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.
18. The bone of contention herein is the alleged exclusion of the Petitioners as a Community for purposes of Sections 38 and 109 (i) of the Mining Act. This is a matter within the preserve of the Cabinet Secretary and in the event the parties are dissatisfied; the regulations provide that the appeal is to be determined by the Environment and Land Court.
19. Because of the foregoing analysis, I find that the Petitioners do not bring themselves within the recognised exceptions to both doctrines of exhaustion and constitutional avoidance. For this reason, I find that the jurisdiction of this Court is ousted and as was pronounced in the seminal decision of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) the only thing left for the Court to do is to down its tools and strike out the matter for want of jurisdiction.
20. Each party will bear their own costs
DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM THIS 22 nd DAY OF SEPTEMBER 2026
2. They seek declarations affirming their indigenous rights over the concession area, recognition of their marginalization, and findings that their constitutional rights under Articles 27, 35 and 43 have been violated. They ask the Court to quash the 15 August 2019 elections, halt the CDA Committee from taking office without their involvement, and order fresh elections that include the Musenke Community. They also seek injunctive relief preventing further exclusion, any additional orders the Court deems fit, and costs of the Petition.
3. The 1st and 2nd Respondents oppose the Petition, which challenges the establishment of the Community Development Agreement Committee for Tata Chemicals Magadi Limited on the ground that the Petitioners, who identify themselves as the marginalised Musenke community, were excluded from representation and consequently threatened with violations of their rights to equality, access to information, public participation, property, and equitable sharing of benefits from natural resources. The Respondents explain that under section 109 of the Mining Act, 2016 and the Mining (Community Development Agreement) Regulations, 2017, the mineral-right holder is required to enter into a Community Development Agreement with the relevant community, and that the statutory framework replaced the former Liaison Committee arrangement.
4. They state that the Tata Chemicals Magadi project extends across five sub-counties—Magadi, Kajiado, Isinya, Mukaa and Changamwe—and therefore five CDACs are being established, with community projects to be funded from a minimum of 1% of gross mineral revenue. The Respondents maintain that the process was still ongoing, involving consultations and elections, with County Government nominees yet to be submitted, and no final gazettement having occurred. They acknowledge that the Ministry received a complaint concerning exclusion of the Musenke community and was in the process of convening stakeholders to address it and consequently contend that the Petition and the reliefs sought are premature and misplaced, urging that the matter be resolved through the ongoing statutory and consultative process.
5. In response to the Petition, the Ist Interested Party, Tata Chemicals Magadi Limited, asserts that it holds a valid lease for the concession area and has entered into a Community Development Agreement (CDA) with the recognized Magadi Local Community, which comprises four specific group ranches under the Community Land Act.
6. Furthermore, the company argues that it had only a peripheral role in the selection of the CDA Committee members, noting that the election process was conducted by the community itself and overseen by the Ministry of Petroleum and Mining. Consequently, the company contends that it cannot address the petitioners' grievances regarding their alleged exclusion, as those matters were determined independently by the recognized community groups.
7. The 2nd Interested Party, County Government of Kajiado supports the Petition and avers that although the Musenke Community is not registered under the Community Land Act, it qualifies as a community under the Mining Act and should have been part of the CDA process. They argue that excluding the Musenke Community and the County Government of Kajiado from the negotiations and the August 2019 elections invalidates the resulting CDA. The submissions highlight that the process failed to uphold constitutional principles of public participation and inclusiveness, calling for judicial intervention to address the exclusion of these stakeholders from decisions impacting their ancestral lands and livelihoods.
8. The 3 rd Interested Party opposes the Petition and assert that the CDA negotiation and committee election processes were transparent, public, and legally compliant, and urge that the current legal challenge is being prosecuted in bad faith, causing significant and avoidable delays in the delivery of vital development resources to the community.
9. They further contest the legitimacy of the Petitioners, who claim to represent a "Musenke community," arguing that no such distinct entity exists and that the concession area is exclusively held by the four recognized group ranches. It is argued that the Petitioners are not legitimate representatives and are attempting to obstruct communal benefits intended for all residents of the Lake Magadi resource area. Consequently, it is submitted that the ongoing litigation is prejudicial to the community’s interests and urges the court to dismiss the petition so that the CDA can finally be implemented without further delay.
10. I have taken note of the submissions filed by the parties herein.
ANALYSIS AND DETERMINATION
11. Having considered the pleadings herein, along with the submissions filed herein and the relevant law, I frame the following as the issues for determination
a. Whether the Petition is justiciable?
b. Arising from (a) above whether the Petitioner’s rights were violated as alleged?
c. Arising from (a) and (b) what are the consequential orders
12. The respondents contend that the Petition runs afoul of the doctrines of exhaustion and constitutional avoidance. It is submitted that there exist statutory mechanisms to resolve the dispute that have not been exhausted by the Petitioners and that further the respondents are vested with the statutory mandate to resolve the issue.
13. In Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), t he Court of Appeal held that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Likewise, in Geoffrey Muthinja Kabiru & 2 Others v. Samuel Munga Henry & 1756 Others (2015), The Court emphasized the importance of exhausting alternative remedies before approaching the courts, reinforcing the need for parties to utilize established mechanisms for dispute resolution.
14. The Petitioner does not deny there is a statutory process for addressing the grievance they have. The same is set out at regulation 5 of the Mining (Community Development Agreement) Regulations, Legal Notice 148 of 2017 which provides;
5. Identification of a community
15. (1)As part of the environmental social impact assessment carried out in accordance with the Environmental Management and Coordination Act, the holder shall identify one or more communities with which it proposes to enter into an Agreement.
(2)The holder shall, within thirty days of the grant of a mining licence, notify the community in writing of its intention to enter into an agreement and send a copy to the Cabinet Secretary.
(3)A community that has not been identified by the holder may give notice to the holder that it should be identified as a party to the Agreement.
(4)Where a community gives notice to a holder that it should be identified as a party to the Agreement and the holder is not in agreement, that community may submit a petition to the Cabinet Secretary.
(5)The Cabinet Secretary in consultation with the County Government and the National Environmental Management Authority shall notify the holder within ninety days from the receipt of the petition, whether the community should be identified as a party to the Agreement.
(6)A party that is aggrieved by the decision of the Cabinet Secretary may appeal to the Environment and Land Court within thirty days from the date of notification
16. There is therefore a clearly set out procedure. The Petitioners have not exhausted it, neither have they brought themselves within the exceptions to the doctrine of exhaustion as set out in Wahome v Public Health Officers & Technicians Council & another [2023] KEHC 2680 (KLR) and which include; futility, that is if pursuing the administrative remedies would be futile or inadequate; if there would be irreparable harm in the absence of immediate judicial intervention and if the case involves a pure question of law or a constitutional challenge that the administrative agency cannot resolve.
17. The last exception relates directly to the doctrine of constitutional avoidance. In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), the Supreme Court reiterated that the principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. It cited with approval the decision of the South African Constitutional Court in S v. Mhlungu, 1995 (3) SA 867 (CC) where Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows
[59]I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.
18. The bone of contention herein is the alleged exclusion of the Petitioners as a Community for purposes of Sections 38 and 109 (i) of the Mining Act. This is a matter within the preserve of the Cabinet Secretary and in the event the parties are dissatisfied; the regulations provide that the appeal is to be determined by the Environment and Land Court.
19. Because of the foregoing analysis, I find that the Petitioners do not bring themselves within the recognised exceptions to both doctrines of exhaustion and constitutional avoidance. For this reason, I find that the jurisdiction of this Court is ousted and as was pronounced in the seminal decision of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) the only thing left for the Court to do is to down its tools and strike out the matter for want of jurisdiction.
20. Each party will bear their own costs
DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM THIS 22 nd DAY OF SEPTEMBER 2026